Sullivan v. Cassidy

JONES, J.

„1. In a will contest case the contestees offered six wills of the testator executed prior to the will contested. In its general charge the trial court, specifically referring to these prior wills, said to the jury that they had “been admitted in evidence as bearing upon the state of mind of the testator at the time of executing his last will and testament, and should be considered by you for no other purpose.” Thereupon counsel for contestees excepted to the court’s refusal to limit also “the admissibility of plaintiff’s exhibits and testimony as to sayings and writings of the testator” as bearing on testator’s state of mind.

HELD; — 'Siniee counsel for contestees d,id not specify what exhibits or what portions of plaintiff’s testimony they desired to be likewise limited, but left the selection thereof to the court for its determination, refusal to give the request in the form presented was not error. Had the court given the request as asked, the jury would have been left in doubt as to what specific evidence the limitation requested would apply.

2. The will contested was executed in August, 1924. On the trial contestees offered a stenographic report of testator’s testimony taken about March, 1899, more than twenty-five years before the execution of the contested will. This testimony was taken in a replevin suit brought, not by the testator’s daughter, the plaintiff in this action, but by her husband, one A. R. Cassidy. The testimony tended to disclose ill-will at that time on the part of the testator against both Cas-sidy and his daughter. The exclusion of the stenographer’s report of testator’s testimony teken more than 25 years before the execution of the contested will, was not erroneous.

(Allen, Kinkade, Robinson and Mathias, JJ., concur.)